Bankruptcy Law

Pursuant to Article L. 626-14(1) of the Commercial Code, the court may, in the judgment adopting or amending the plan, decide that the assets it deems essential to the continuation of the business may not be disposed of, for a period it determines, without its authorization. The duration of the inalienability may not exceed the duration of the plan.
Only assets essential to the continuation of the …

Assets essential to the continuation of the business

Pursuant to Article L. 626-14(1) of the Commercial Code, the court may, in the judgment adopting or amending the plan, decide that the assets it deems essential to the continuation of the business may not be disposed of, for a period it determines, without its authorization. The duration of the inalienability may not exceed the duration of the plan.

Only assets essential to the continuation of the business may be subject to such a measure. This is the case for goodwill, but not for real estate acquired specifically for the purpose of resale , unless the debtor itself proposes that it be inalienable, in order to reassure the creditors, by allowing the court to ensure that the sale price is appropriate . Similarly, assets covered by a leasing contract, which are not yet part of the debtor company's assets on the day of the judgment adopting the plan, cannot be subject to a measure of inalienability pronounced by the court .

The measure of inalienability must, at the request of the commissioner for the execution of the plan, be mentioned in the public registers in which the assets declared inalienable and the rights encumbering them are registered or, failing this, in the registers mentioned in Article R. 621-8 . The publication must specify the duration of the inalienability. In addition, when the decision adopting or modifying the plan pronounces the temporary inalienability of the debtor's movable equipment and has become final, the commissioner for the execution of the plan must request the registration of the inalienability measure in the register provided for this purpose .

The court may be seized by the debtor of an application for authorization to dispose of an asset that he has made inalienable. It then decides, under penalty of nullity, after having obtained the opinion of the public prosecutor, in view of the report of the commissioner for the execution of the plan . Its decision is notified to the debtor and communicated to the public prosecutor and the commissioner for the execution of the plan. It is subject to the remedy provided for decisions amending the plan.

Any instrument concluded in violation of the provisions of the first paragraph of Article L. 626-14 of the Commercial Code must be annulled at the request of any interested party or of the public prosecutor, presented within a period of three years from the conclusion of the instrument . Where the deed is subject to publicity, the period runs from the date of publicity.

CA Bourges, 5 November 2020, LawLex202200004509JBJ (RJ).

CA Amiens, 28 April 2016, LawLex202200004506JBJ (RJ).

Cass. com., 12 July 2017, LawLex202200004499JBJ (RJ).

Bankruptcy Law

266. Assets essential to the continuation of the business

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266. Assets essential to the continuation of the business

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise